commercial whalers are being hired. Plaintiffs did not dispute that Japan was not precluded from research whaling, but rather argued that using the same vessels and crew as were engaged in commercial operations shows up the ruse that the Japanese have played. However, the Court is at a loss to understand what other kinds of ships or types of sailors would be better suited to conduct research on whales in the Antarctic Ocean. If Japan's research program is a sham, the Secretary of Commerce should have first crack at exposing it.
Finally, the Court is not convinced that this "evidence" would have changed the result. The terms "commercial," "research," and "subsistence" are recognized as discrete categories of whaling. The type of whaling at issue before the Supreme Court was "commercial" whaling. The Supreme Court held that the Secretary furthered this [conservation] objective by entering into the agreement with Japan calling for that nation's acceptance of the worldwide moratorium on commercial whaling. See 106 S. Ct. at 2871 (emphasis added). Counsel for plaintiffs during the course of the November 18 hearing represented to the Court that at oral argument before the Supreme Court counsel for the petitioners stated at 63 different times that the Murazumi-Baldrige Agreement spelled the end of all whaling by Japan. However, one need only read the Supreme Court's holding to discern that the Supreme Court understood that it was the goal of the agreement to end all commercial whaling by Japan. See 106 S. Ct. at 2872. Once again, this Court must emphasize that if Japan has proposed programs that are but shams and permit it to continue commercial whaling, then the Secretary of Commerce should make that determination. Any attempt by Japan to disguise a massive commercial whaling operation as a "scientific" or "research" effort ought to be rather obvious. Even if it is not so obvious to the Secretary of Commerce, plaintiffs will be swift in bringing it to the Secretary's attention and to the Courts, if necessary.
C. Plaintiffs Fail to Show "Extraordinary Circumstances" Justifying the Invocation of This Court's Discretion to Order Relief Pursuant to Fed. R. Civ. P. 60(b)(6)
As a last resort, plaintiffs seek relief from judgment pursuant to Fed. R. Civ. P. 60(b)(6). Relief under this subsection of the rules may be granted by the Court in its discretion in extraordinary circumstances to avoid manifest injustice where "the judgment was obtained by the improper conduct of the party in whose favor it was rendered or the judgment resulted from the excusable default of the party against whom it was directed under circumstances going beyond the earlier clauses of the rule." See Wright & Miller, Federal Practice and Procedure: Civil § 2864; see also Klapprott v. United States, 335 U.S. 601, 613-15, 93 L. Ed. 266, 69 S. Ct. 384 (1949); Ackermann v. United States, 340 U.S. 193, 202, 95 L. Ed. 207, 71 S. Ct. 209 (1950). Unlike the situation addressed by the Court of Appeals for the District of Columbia in Good Luck Nursing Home, Inc. v. Harris, 204 U.S. App. D.C. 300, 636 F.2d 572, 577 (D.C. Cir. 1980), there has been no error caused by the parties' failure to make key facts known. As noted already, if there has been a misrepresentation made, it was made to the Secretary of Commerce. The only question before the Supreme Court was whether it was reasonable for the Secretary to conclude that he had discretion under the Pelly and Packwood Amendments to consider alternatives to certification in the effort to achieve worldwide compliance with IWC quotas. Thus, Fed. R. Civ. P. 60(b)(6) affords no basis for plaintiffs to seek relief from the judgment of the Supreme Court.
In accordance with the Opinion issued of even date, it is by the Court this 18th day of November, 1987
ORDERED that plaintiffs' motion for relief from judgment pursuant to Fed. R. Civ. P. 60(b)(2) be, and hereby is, denied; and it is
FURTHER ORDERED that plaintiffs' motion for relief from judgment pursuant to Fed. R. Civ. P. 60(b)(3) be, and hereby is, denied, and it is
FURTHER ORDERED that plaintiffs' motion for relief from judgment pursuant to Fed. R. Civ. P. 60(b)(6) be, and hereby is, denied.
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